January 30, 2001

No. 2--99--0994

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

Defendant, Oscar Parham, presently serving a term of natural life in prison formurder, appeals the trial court's summary dismissal of his petition brought underthe Post-Conviction Hearing Act (Act) (725 ILCS 5/122--1 et seq. (West 1998)).Defendant's direct appeal was unsuccessful, and his first postconviction petitionwas dismissed without a hearing. We affirm.

BACKGROUND

Following a jury trial, defendant was convicted of two counts of first-degreemurder and sentenced to life imprisonment. In the trial court, defendant, bycounsel, filed the postconviction petition at issue here. Before the State'sright to respond to the petition under the Act was triggered, the trial courtfiled a written order and opinion dismissing the petition without a hearingbecause it was "frivolous and patently without merit because not timely filed." The court noted that defendant was convicted eight years before he filed thepetition and he did not attempt to demonstrate that the delay in filing was notdue to his "culpable negligence." Accordingly, the court found that the petitionwas untimely under section 122--1(c) of the Act (725 ILCS 5/122--1(c) (West1998)).

In this timely appeal, defendant argues that the trial court's dismissal of hispetition as untimely was erroneous because "limitations is an affirmative defense,not at issue until raised by the [S]tate in a responsive pleading," and that theState waived its timeliness objection by not responding to his petition in thetrial court. Defendant's other claims will be dealt with in an unpublishedportion of this decision pursuant to Supreme Court Rule 23 (166 Ill. 2d R. 23). For the reasons provided below, we affirm the trial court's summary dismissal ofdefendant's postconviction petition.

ANALYSIS

Section 122--1(c) of the Act provides:

"No proceedings under this Article shall be commenced more than 6 months after thedenial of a petition for leave to appeal or the date for filing such petition ifnone is filed or more than 45 days after the defendant files his or her brief inthe appeal of the sentence before the Illinois Supreme Court (or more than 45 daysafter the deadline for the filing of the defendant's brief with the IllinoisSupreme Court if no brief is filed) or 3 years from the date of conviction,whichever is sooner, unless the petitioner alleges facts showing that the delaywas not due to his or her culpable negligence." 725 ILCS 5/122--1(c) (West 1998).

The petitioner has the burden of establishing that a delay in filing apostconviction petition was not due to his culpable negligence. See People v. VanHee, 305 Ill. App. 3d 333, 336 (1999).

Section 122--2.1(a) of the Act requires the trial court to review a petition andfile an order within 90 days after the petition is filed and docketed ("initialreview"). 725 ILCS 5/122--2.1(a) (West 1998). Section 122--2.1(a)(2) providesthat, if the petitioner is under a sentence of imprisonment and the court findsthat the petition is frivolous or patently without merit, then the court may entera written order stating so, supported by findings of fact and conclusions of law. 725 ILCS 5/122--2.1 (a)(2) (West 1998). If the court does not dismiss thepetition, then it shall order that the petition be docketed for furtherconsideration. 725 ILCS 5/122--2.1(b) (West 1998). The State must respond within30 days or such further time as the court may set. 725 ILCS 5/122--5 (West 1998). The State is not permitted to respond to the petition during its initial review bythe trial court; at this stage "the circuit court considers the petitionindependently, without any input from either side." People v. Gaultney, 174 Ill.2d 410, 418 (1996). Appellate review of a trial court's summary dismissal of apostconviction petition is de novo. See People v. Coleman, 183 Ill. 2d 366, 388(1998).

The trial court dismissed defendant's petition during its initial review, beforethe State had the opportunity to respond. The trial court based its dismissalpartly on its finding that the petition was untimely under section 122-1(c) of theAct. Although it had no occasion to raise a timeliness objection to the petitionin the trial court, the State asks us to affirm the trial court's sua spontefinding of untimeliness. Defendant concedes that his petition is untimely, but hecontends that the timeliness of his petition is not properly before this court. Defendant argues that the trial court had no authority to dismiss his petition asuntimely in the absence of the State's motion to dismiss on that ground and thatthe State has waived its timeliness objection by not raising it in the trialcourt. Defendant cites People v. Wright, 189 Ill. 2d 1 (1999), for theproposition that the time restriction in section 122-1(c) constitutes not ajurisdictional bar but a statute of limitations that the State must affirmativelyplead or waive.

The State cites Wright for the opposite conclusion that a trial court has theauthority to dismiss a petition as untimely during its initial review despite thefact that the State can never raise a timeliness objection during that initialreview. We agree with the State's reading of Wright.

Unlike the petition under review here, the petition in Wright survived the initialreview stage, giving the State the opportunity it did not have in this case torespond to the petition. Wright, 189 Ill. 2d at 5. The State successfully soughtto dismiss the petition, but not on timeliness grounds. Wright, 189 Ill. 2d at 5,11. On appeal, the defendant did not contend that the petition was timely butinstead asserted that the State had waived its timeliness objection by notbringing it before the trial court. Wright, 189 Ill. 2d at 10-11. The courtagreed, holding that the time limit found in section 122--1(c) is a statute oflimitations rather than a jurisdictional bar to a court's review of a petition andthat the State had waived the timeliness objection by failing to bring it earlier. Wright, 189 Ill.2d at 10.

The court continued as follows:

"Here, although the facts support the conclusion that defendant did not file hispetition within the time limits found in section 122--1, that section allows adefendant to file a petition outside the limitations period if the late filing isnot due to the defendant's culpable negligence. [Citation]. By not raising thisissue until the cause was on appeal, the State has effectively precluded defendantfrom seeking to amend his petition to allege facts demonstrating that the latefiling was not caused by his culpable negligence. While we recognize that section122--1 requires the defendant to allege facts demonstrating a lack of culpablenegligence, we do not believe that this requirement allows the State to wait untilan appeal to raise an affirmative defense that the defendant may be able to avoidby amending his petition." Wright, 189 Ill. 2d at 11.

The court then added this proviso:

"In reaching this conclusion, we caution that we are not limiting the trialcourt's ability, during the court's initial review of noncapital petitions[citation], to dismiss the petition as untimely. The import of our decision issimply that matters relating to the timeliness of a defendant's petition shouldfirst be considered in the trial court, either upon a motion by the State orpursuant to the duty imposed upon the trial court by section 122--2.1(a)(2)."Wright, 189 Ill. 2d at 11-12.

Simple or not, the foregoing Wright analysis prompted a strongly worded specialconcurrence that foreshadowed the confusion and disagreement that now exist amongour appellate districts on how to construe Wright. See Wright, 189 Ill. 2d at 19-40 (Freeman, J., specially concurring).

The First District held in People v. Lopez, 1--99--1653, slip op. at 11 (December6, 2000), that the trial court may, during its initial review, "summarily dismissan untimely petition as 'frivolous' where the allegations, taken as true, do notshow a lack of culpable negligence in failing to file a timely petition."

The Second District noted in People v. Huffman, 315 Ill. App. 3d 611, 613 (2000),that the plain language of the Act requires the dismissal of an untimely petitionunless the defendant alleges facts showing the delay was not occasioned by hisculpable negligence.

The Third District in People v. Arias, 309 Ill. App. 3d 595, 597 (2000), held thatif timeliness is not addressed by the trial court then it cannot be addressed inthe appellate court.

The Fourth District in People v. Boclair, 312 Ill. App. 3d 346, 350 (2000), leaveto appeal granted, 189 Ill. 2d 690 (2000), held that the appellate court had aresponsibility to address the timeliness issue even if the trial court had not. Later, in People v. Harden, 316 Ill. App. 3d 695, 697-98 (2000), the FourthDistrict observed that Wright makes it a "abundantly clear" that the trial courtmay consider sua sponte the time limits of a postconviction petition during itsinitial review.

Finally, in the culmination of a line of cases (see People v. Hill, 313 Ill. App.3d 362 (2000); People v. Johnson, 312 Ill. App. 3d 532 (2000); People v. McCain,312 Ill. App. 3d 529 (2000)), the Fifth District held in People v. Whitford, 314Ill. App. 3d 335, 343 (2000), that the trial court may not consider the timelinessof the petition during the court's initial review.

To explain our holding we now will examine the foregoing cases. First, we agreewith the First District's holding in Lopez. In Lopez, the trial court during itsinitial review (i.e., before the State had an opportunity to respond) dismissedthe defendant's petition as untimely. Lopez, slip op. at 1. Lopez held that thetrial court may, during its initial review, "summarily dismiss an untimelypetition as 'frivolous' where the allegations, taken as true, do not show a lackof culpable negligence in failing to file a timely petition." Lopez, slip op. at11. While we agree with the holding in Lopez, we disagree with the FirstDistrict's observation in Lopez that Wright said "the trial court is free toconsider untimeliness of the petition during its initial review, 'either upon amotion by the State or pursuant to the duty imposed upon the trial court bysection 122--2.1(a)(2).' " (Emphasis omitted.) Lopez, slip op. at 6-7, quotingWright, 189 Ill. 2d at 11-12. Lopez has read too much into the Wright holding;the pivotal language that it quotes from Wright does not indicate when the Statefirst may make a motion to dismiss a postconviction petition on timelinessgrounds. While nowhere in Wright is there an express statement that the State maynot make a motion to dismiss on timeliness grounds during the initial review,there also is no evidence in the opinion of an overt or implied overruling of thesupreme court's recent holding that, during the initial review of a petition, "thecircuit court considers the petition independently, without any input from eitherside" (emphasis added) (Gaultney, 174 Ill. 2d at 418). In our view, Wright holdsthat the trial court can consider timeliness sua sponte during the initial reviewor upon a motion by the State at a later time. See Wright, 189 Ill. 2d at 11-12.

We have not yet had occasion to address this issue squarely. Our closestopportunity was in People v. Huffman, 315 Ill. App. 3d 611 (2000). In Huffman,the court upheld the trial court's dismissal of the defendant's petition asuntimely, observing that the plain language of the Act requires the dismissal ofan untimely petition unless the defendant alleges facts showing the delay was notcaused by his negligence. Huffman, 315 Ill. App. 3d at 613. However, as thecourt noted, the case before it differed from Wright in that the State had seizedthe opportunity it did not seize in Wright to raise the issue of timeliness beforethe trial court. Huffman, 315 Ill. App. 3d at 613. In both Wright and Huffman,the petition had survived the trial court's initial review which, as noted, occurswithout the State's participation. Thus, in both Wright and Huffman the Stateparticipated in the trial court proceedings that were the subject of appeal. InWright, the supreme court found that the State's voluntary failure to raisetimeliness in the trial court constituted waiver. Unlike Wright, in Huffman theState did raise its timeliness objection as soon as the State was allowed toparticipate in the trial court proceedings, i.e., after the petition survived thecourt's initial review. Thus, Huffman did not address whether the trial courtcould have considered the timeliness of a petition sua sponte during its initialreview. Huffman, 315 Ill. App. 3d at 613-14.

The Third District in Arias, 309 Ill. App. 3d 595, where the "circuit court dismissed the petition at the first stage of theproceedings without the circuit court ruling on its timeliness," concluded that "[u]nder Wright *** timeliness ha[d] beenwaived." Arias, 309 Ill. App. 3d at 597. By these remarks, the court clearly assumed that the circuit court could have ruledon the petition's timeliness sua sponte. We do not believe the appellate court would have grounded its ruling on the trialcourt's failure to do something which the appellate court believed the trial court had no power to do anyway. Thus, Ariasadhered to the Wright mandate by concluding that timeliness cannot be addressed for the first time on appeal.

We disagree with the First District's observation that, in Arias, the Third District "took Wright to mean the failure of theState to raise timeliness of the petition at the first stage waives the issue, since the time limitations in the Act should beconsidered an affirmative defense." Lopez, slip op. at 6, citing Arias, 309 Ill. App. at 597. Contrary to the First District'sreading of Arias, the Third District does not even mention in Arias that the State did not raise a timeliness objection in thetrial court, much less ascribe any consequence to that fact. See Arias, 309 Ill. App. 3d at 597.

In Boclair, the Fourth District encountered the same situation that the Third District had in Arias, but came to a differentconclusion. The trial court had dismissed the petition during the initial review, but not on timeliness grounds. Boclair, 312Ill. App. 3d at 347. Unlike Arias, Boclair held that the appellate court had the responsibility to address the timeliness issueeven if it had not been addressed in the trial court. Boclair, 312 Ill. App. 3d at 350. Boclair distinguished Wright by notingthat the Wright court had addressed a situation where the State had had an opportunity to raise timeliness in the trial courtbecause the petition had survived the initial review. Boclair, 312 Ill. App. 3d at 350. Boclair noted that it was reviewing asituation where the petition had not survived the initial review (although it was dismissed by the trial court on groundsother than timeliness) and thus the State had not participated. Boclair, 312 Ill. App. 3d at 350. Boclair held that the issueof timeliness can be addressed for the first time on appeal as long as the case was dismissed during the initial review by thetrial court, where the State did not participate. Boclair, 312 Ill. App. 3d at 350. Boclair addressed only part of the concernidentified in Wright, i.e., that the State not be allowed voluntarily to wait until appeal to raise timeliness. Nevertheless,Boclair failed to comport with Wright because the timeliness objection was raised and decided for the first time on appeal.

Later, in People v. Harden, 316 Ill. App. 3d 695, 698 (2000), the Fourth District observed that Wright makes its abundantlyclear that the trial court may consider sua sponte the timeliness of a postconviction petition during its initial review "at leastwhere *** the defendant had not alleged that the untimeliness is not due to his culpable negligence."

Finally, the Fifth District repeatedly has held that trial courts may not considerthe timeliness of petitions during the initial review phase. See Whitford, 314Ill. App. 3d at 343. The Fifth District held that Wright's affirmation of theauthority of a trial court to dismiss a petition sua sponte as untimely during theinitial review is dicta and "not controlling." Whitford, 314 Ill. App. 3d at 341,citing Wright, 189 Ill. 2d at 11.

We agree with the First District in Lopez and the Fourth District in Harden andhold that a trial court may, on its own initiative, consider the timeliness of apetition during its initial review of that petition pursuant to section 122--2.1(a)(2) of the Act. Our holding satisfies Wright's mandate that the timelinessof a petition be addressed first in the trial court, either by the trial court suasponte during its initial review of the petition or upon the State's motion if thepetition survives the initial review.

In so ruling, we note that the holding in Wright plainly was structured by thecourt's desire to cure a particular inequity it perceived in the facts before it. In Wright, the petition survived the trial court's initial review, and, althoughthe State thereafter filed a motion to dismiss the petition, it failed to seizeits opportunity to raise a timeliness objection before the trial court. Wright,189 Ill. 2d at 5. The State first raised its timeliness objection on appeal. Wright, 189 Ill. 2d at 5. The supreme court was concerned that a decision not tofind that the State had waived its timeliness objection in these circumstanceswould have permitted the State in all cases "to wait until an appeal to raise anaffirmative defense that the defendant may be able to avoid by amending hispetition." Wright, 189 Ill. 2d at 11. Assuring that its intent only was toinsure "that matters relating to the timeliness of a defendant's petition ***first be considered in the trial court," the court emphasized that it was notlimiting "the trial court's ability, during the court's initial review ofnoncapital petitions [citation], to dismiss the petition as untimely." (Emphasisadded.) Wright, 189 Ill. 2d at 11.

The court then specified two means whereby timeliness could be considered in thetrial court: (1) on the State's motion (which can occur only after the initialreview phase); or (2) "pursuant to the duty imposed upon the trial court bysection 122-2.1(a)(2)." Wright, 189 Ill. 2d at 11-12. We regard this language asa clear affirmation of the trial court's power to consider sua sponte thetimeliness of a petition during its initial review of the petition.

Given that the court's design in Wright was both to ensure that the timeliness ofa petition first is considered in the trial court and to prevent the State'svoluntary relinquishment of its opportunity to raise a timeliness objection in thetrial court from thwarting this design, we find that a trial court's sua spontedismissal of a petition as untimely during its initial review, as happened in thiscase, is entirely consistent with that design and appropriate. The case beforeus does not raise the concerns mollified in Wright. Per Wright's mandate, thetimeliness of defendant's petition here first was considered in the trial court.During the initial review, before the State had an opportunity to respond, thetrial court dismissed the petition without a hearing, indicating in its writtenorder that it found the petition untimely. Defendant appealed the summarydismissal to this court. The State asks us to affirm the trial court's dismissalof the petition as untimely. We refuse to find, as defendant asks, that the Statewaived its timeliness objection where it simply had no opportunity to raise itbefore this appeal. "Waiver" is the "intentional or voluntary relinquishment of aknown right." Black's Law Dictionary 1751 (4th ed. 1968). We cannot say that aparty waived an objection which, through no fault of its own, it had noopportunity to raise under the controlling rules of procedure.

To label simply as dicta the Wright court's affirmation of the trial court'sauthority to dismiss a petition as untimely during its initial review, as does theFifth District (see Whitford, 314 Ill. App. 3d at 341), is only to begin ananalysis of that affirmation's import. The fact that the court could have decidedthe issues in Wright without including its remarks on the permissible grounds forsummary dismissal of a petition is not dispositive. A declaration of opinionupon a point argued by counsel and deliberately passed upon by the court, thoughnot essential to the disposition of the cause, is judicial dictum to be accorded"much weight" and disregarded only if erroneous. Cates v. Cates, 156 Ill. 2d 76,80 (1993). Judicial dictum is contrasted with obiter dictum, which is a "remarkor opinion uttered by the way," and thus as a general rule is not bindingauthority. Cates, 156 Ill. 2d at 80. In Whitford, the Fifth District does notreference this crucial distinction. See Whitford, 312 Ill. App. 3d at 341.

We believe that the court in Wright viewed its remarks about the trial court's authority to dispose of a postconviction petition during itsinitial review pursuant to section 122--2.1(a)(2) as part of its holding in thecase. In ruling that untimeliness is an affirmative defense that the State mustplead or waive and then applying this ruling to hold that the State had waived itstimeliness objection by failing to take the opportunity to raise it at the triallevel, the court recognized that it had raised a critical question: may a trialcourt ever properly dismiss a postconviction petition as untimely during thecourt's initial review of that petition given that the State is not allowed inputduring that process and thus cannot raise a timeliness objection? See Wright, 189Ill. 2d at 7-12. The court, expressly disavowing an intention to abrogate "thetrial court's ability, during the court's initial review of noncapital petitions[citation], to dismiss the petition as untimely," answered this questionunambiguously. Wright, 189 Ill. 2d at 11.

The court's declaration was not academic. After deciding an issue raised by theparties in a manner that impliedly eliminated the trial court's ability toconsider the timeliness of a postconviction petition during its initial review ofthat petition, the court explicitly clarified that holding with an affirmative anddecisive pronouncement. The clarification was part of the holding. Therefore, weview as judicial dictum the Wright court's affirmation of the authority of a trialcourt to dismiss a postconviction petition as untimely during its initial review. Accordingly, we will disregard that affirmation only if we find it erroneous. SeeCates, 156 Ill. 2d at 80.

We do not find that pronouncement erroneous. We disagree with the Fifth District'sreasoning in Whitford that, because the time limit that section 122--1 imposes onpostconviction petitions is a statute of limitations, the trial court never canconsider the timeliness of a petition during its initial review of the petition. See Whitford, 314 Ill. App. 2d at 342-43. As our preceding discussion concerningdicta revealed, labels sometimes are indeterminate. Legal analysis that reliestoo heavily on a label, rather than looking to the law itself, quickly can becomeflawed. Flawed analysis can lead to widely divergent interpretations andpronouncements such as we have seen above.

In analyzing section 122--1(c), Wright observed that it had "more in common withstatutes of limitations than with statutes conferring jurisdiction." Wright, 189Ill. 2d at 8. Unfortunately, Wright did not stop there and went on to say thatsection 102--1(c) was a statute of limitations, and some subsequentinterpretations of Wright seized upon that label. In so doing, those courts haveignored the actual Wright analysis (i.e., the "more in common" language) and havedisregarded other clear language of Wright as obiter dictum in order to pay heedto the label "statute of limitations." This label, notably, does not appearanywhere in the Act. A review of the analysis in Wright indicates the court wasnot certain that "statute of limitations" was the proper category for the timelimit. For example, if the time limit in section 122--1(c) is a statute oflimitations in the full sense, then it would be the State's burden to plead allfacts constituting a petitioner's noncompliance with the time limit, including theexistence of the petitioner's culpable negligence. Yet, as Wright holds, it isexpressly the petitioner's burden to prove the absence of culpable negligence. See Wright, 189 Ill. 2d at 12 (holding that a petitioner "should plead factsdemonstrating his lack of culpable negligence").

The analysis in Wright clearly implies that the time limit does not possess allfeatures of a typical statute of limitations. Focusing, as we should, on thelanguage of the Act itself rather than adhering to a label, we note that the timelimit in section 122--1(c) has a hybrid nature that allowed the Wright court tofind an exception to this putative statute of limitations for the court's initialreview of a petition. Simply put, our view is that the legislature is free tocreate a provision that carries some of the qualities of a typical statute oflimitations but not all of those qualities. Such a hybrid provision reasonablycould be labeled a "statute of limitations" for convenience. See Wright, 189 Ill.2d at 27 (Freeman, J., specially concurring), citing Smith v. City of ChicagoHeights, 951 F.2d 834, 838 (7th Cir. 1992) (interpreting Illinois law andreferring to provisions that impose jurisdictional bars on actions as "statutes oflimitations"). Of course, reasonable minds may dispute the soundness ofan exception to this putative statute of limitations for the court's initialreview of a petition. We recognize that it is never appropriate for a court toread into a statute exceptions, conditions, and limitations that flout the plainlegislative intent. See Eagan v. Chicago Transit Authority, 158 Ill. 2d 527, 532(1994). At the same time, however, we must acknowledge that the supreme court'sinterpretation of a statute is considered part of the statute itself unless anduntil the legislature amends the statute contrary to the interpretation. SeeHenrich v. Libertyville High School, 186 Ill. 2d 381, 387 (1998). Even if weconsidered it within our authority to question an unambiguous interpretation ofthe Post-Conviction Act by our supreme court, we would find no plain expression oflegislative intent that the court in Wright disregarded in ruling that the trialcourt has power to dismiss a postconviction petition as untimely during itsinitial review even though the State can bring no motion regarding the petitionduring that review.

As the timeliness of defendant's petition was considered at the trial level, andthe State, although having no opportunity to raise a timeliness objection in thetrial court because the petition was summarily dismissed, has asked us to affirmthe trial court's sua sponte finding that the petition is untimely, we address thetimeliness of the petition. As noted, defendant does not deny that his petitionwas untimely. Nor does he offer a substantiated reason why the delay was not dueto his culpable negligence. To show the absence of culpable negligence, apetitioner must allege facts "justifying the delay in filing." People v. Bates,124 Ill. 2d 81, 88 (1988). "Freedom from culpable negligence is very difficult toestablish." People v. Burris, 315 Ill. App. 615, 617 (2000).

Defendant claims that he possesses "newly discovered evidence" regarding the veracity of accomplice and State's witness Ronald Walker's admissionat defendant's trial that his testimony against defendant was in exchange for aplea of guilty to armed violence and a recommendation for 20 years' imprisonment. Defendant does not, however, indicate even the general time frame in which hediscovered this evidence. He merely states that he has learned from "multiplesources" that Walker's attorney promised Walker before he testified at defendant'strial that he would receive imprisonment of 6 years instead of 20 years inexchange for his testimony against defendant. Defendant's lack of specificityprecludes us from finding that his delay in bringing this claim of perjury byWalker was not due to his own culpable negligence. See Huffman, 315 Ill. App. 3dat 614 (finding burden of proving freedom from culpable negligence not met becausethe defendant "did not allege any specific dates of when he learned of theallegedly new evidence").

Defendant also fails to explain why he waited until his secondpostconviction petition to argue that his trial attorney provided ineffectiveassistance of counsel for failing to impeach State's witness David Caples morethoroughly and for failing to inform defendant of the risks of going to trial. Defendant blames appellate counsel for not pressing these claims on direct appealfrom his judgment, but he neglects to explain why he did not raise these issues inhis first postconviction petition, which he drafted pro se and which was deniedsummarily pursuant to section 122--2.1(a)(2) of the Act before he was entitled tothe assistance of counsel. See 725 ILCS 5/122--4 (West 1998) (providing thatsurvival of the initial review period under section 122--2.1 is a prerequisite toappointment of counsel). A defendant's ignorance of procedures governingpostconviction petitions does not excuse the untimely filing of a postconvictionpetition. See People v. Perry, 293 Ill. App. 3d 113, 115-16 (1997), citing Peoplev. Diefenbaugh, 40 Ill. 2d 73, 74 (1968). Defendant has no attorney to blame forhis decision not to bring these claims in his first postconviction petition.

In sum, we find that the trial court properly considered the timeliness ofdefendant's petition during its initial review of the petition under section 122--2.1 of the Post-Conviction Hearing Act and correctly dismissed the petition asuntimely.

Therefore, we affirm the circuit court's dismissal of defendant's postconvictionpetition and, accordingly, affirm his conviction and sentence.

Affirmed.

COLWELL, P.J., and RAPP, J., concur.